PUBLIC RECORD. Record of Determinations. Medical Practitioner: Dates: 03/09/ /09/2018. GMC reference number:

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1 PUBLIC RECORD Dates: 03/09/ /09/2018 Medical Practitioner s name: Dr Ibrahim HAFEZ GMC reference number: Primary medical qualification: Type of case New - Misconduct MD 1995 Semmelweis Orvostudomanyi Egyetem (Semmelweis University of Medical Sciences) Outcome on impairment Impaired Summary of outcome Erasure Immediate order imposed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mr Nick Flanagan Dr Jill Edwards Dr Noel Bevan Tribunal Clerk: Ms D Montgomery Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Mr Lee Gledhill, Counsel, instructed by Doctor Defence Service Mr Alex Mills, Counsel Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held partly in public and partly in private. 1

2 Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Facts - 17/09/2018 Background 1. Dr Hafez qualified in 1995 and gained his Specialist Qualification in Neurological Surgery in Budapest in Dr Hafez began practising in the UK in 2012 and, prior to the events which are the subject of this hearing, he had held three short-term posts in Neurosurgery in the UK. At the time of the initial events, Dr Hafez was practising as a Specialist Registrar in Neurosurgery at the Imperial College Healthcare NHS Trust (ICHT). 2. The allegation that has led to Dr Hafez s hearing can be summarised as concerns arising from Dr Hafez s treatment of Patient A when he was employed by ICHT, specifically whether he performed a burr hole evacuation of a subdural haematoma adequately. 3. It is also alleged that Dr Hafez failed to disclose relevant information regarding his employment status during the course of applying for a new position at Hull and East Yorkshire NHS Trust (HEYHT) and after obtaining the position. It is alleged that his actions in doing so were dishonest. 4. It is further alleged that Dr Hafez failed to obtain appropriate consent from Patient B in relation to spinal surgery (microdiscectomy) and that after realising the error on the consent form he failed to advise his supervising consultant. It is also alleged that Dr Hafez altered the consent form without consulting Patient B or informing his supervising consultant that he had done so. It is alleged that his actions in this regard were dishonest. 5. Initial concerns were raised with the General Medical Council (GMC) on 18 December 2015 by ICHT. The Outcome of Applications made during the Facts Stage 6. The Tribunal granted Mr Mill s application, made on behalf of the GMC, pursuant to Rule 17(6) of the GMC (Fitness to Practise) Rules 2004 as amended (the Rules), to amend sub-paragraph 7(a) of the allegation for the purpose of 2

3 clarification. The Tribunal s full decision is included at Annex A. The Tribunal also amended a typographical error in the allegation, changing parenchymal to parenchyma. 7. The Tribunal granted Mr Gledhill s application, made on behalf of Dr Hafez, to withdraw an admission in respect of sub-paragraph 6(a)(ii). The Tribunal s full decision is included at Annex B. The Tribunal also granted a second application by Mr Gledhill, made at the conclusion of Dr Hafez s evidence, to withdraw an admission in respect of sub-paragraph 17(b), as it became apparent during the course of Dr Hafez s evidence that the admission was made in error. The Tribunal s decision was announced orally. 8. The Tribunal granted Mr Mill s unopposed applications, made pursuant to Rule 34(13) of the Rules, to hear a number of witnesses by telephone. The Tribunal determined, in the interests of efficacy and in light of the agreement between parties, to accede to the applications. The Allegation and the Doctor s Response 9. The Allegation made against Dr Hafez is as follows: Imperial College Healthcare NHS Trust 1. Between 10 August 2015 and 7 December 2015 you were employed by Imperial College Healthcare NHS Trust ( Imperial ) as a Specialist Registrar in Neurosurgery. Admitted and found proved 2. On 30 August 2015 you failed to adequately perform a burr hole evacuation of a subdural haematoma on Patient A, in that you: a. did not use the drill adequately when perforating Patient A s skull; To be determined b. inserted a drain into Patient A s cerebral parenchyma. Admitted and found proved Hull and East Yorkshire NHS Trust 3. On 22 October 2015 you submitted an application ( the Application ) for the position of Clinical Fellow in Neurosurgery to Hull and East Yorkshire NHS Trust ( Hull and East Yorkshire ) and within the Application you failed to: a. disclose that at the time of submitting the Application you were employed at Imperial; Admitted and found proved 3

4 b. provide details of a referee from Imperial. Admitted and found proved 4. In respect of paragraph 3, you knew at the time you submitted the Application that you: a. had not disclosed or provided the information listed in paragraphs 3(a) and (b); To be determined b. were required to disclose or provide the information listed in paragraphs 3(a) and (b). To be determined 5. On 6 November 2015 you attended an interview ( the Interview ) at Hull and East Yorkshire, during which you: a. failed to disclose that you: i. were subject to investigation by Imperial; Admitted and found proved ii. had been formally excluded by Imperial; Admitted and found proved b. gave the impression that you were currently working and undertaking the required duties of your role at Imperial. Admitted and found proved 6. In respect of paragraph 5, you knew that during the Interview you: a. had: i. not disclosed the information listed at paragraphs 5(a)(i) to (ii); Admitted and found proved ii. given the impression described at paragraph 5(b); To be determined b. were required to: i. disclose the information listed at paragraphs 5(a)(i) to (ii); To be determined ii. not give the impression described at paragraph 5(b). To be determined 4

5 7. Between 12 November 2015 and 12 January 2016 you failed to inform Hull and East Yorkshire that you: a. were or had been subject to investigation by Imperial; Admitted and found proved as amended under Rule 17(6) b. had been formally excluded by Imperial. Admitted and found proved 8. In respect of paragraph 7, you knew that you: a. had not provided the information listed at paragraphs 7(a) and (b); Admitted and found proved b. were required to provide the information listed at paragraphs 7(a) and (b). To be determined 9. Your actions as described at paragraphs 3 to 8 were dishonest. To be determined 10. On or around 22 December 2015 you failed to obtain appropriate consent from Patient B in relation to a microdiscectomy on Patient B s left side in that the consent form referred only to a microdiscectomy on Patient B s right side. Admitted and found proved 11. On 23 December 2015 you assisted Dr C with the microdiscectomy during or before which you realised that you had obtained consent for the wrong side only and you: a. failed to appropriately communicate with Dr C forthwith that you had failed to take appropriate consent; Admitted and found proved b. knew that you were required to inform Dr C forthwith that you had failed to take appropriate consent. To be determined 12. On 23 December 2015 having realised that you obtained consent for the wrong side you: a. altered the consent form without: i. consulting Patient B; Admitted and found proved ii. informing Dr C; Admitted and found proved b. knew you should not alter the consent form without: 5

6 i. consulting Patient B; To be determined ii. informing Dr C. To be determined 13. On 23 December 2015 you failed to maintain adequate records for Patient B in that having amended the consent form you: a. failed to record on the consent form: i. that it had been amended; Admitted and found proved ii. the reason for the amendment; Admitted and found proved b. failed to record in Patient B s medical records: i. that the consent form had been amended; Admitted and found proved ii. the reason for the amendment; Admitted and found proved c. knew that you were required to record the information stated at paragraphs 13(a) and (b). To be determined 14. You actions as described at paragraphs 11 to 13 were dishonest. To be determined The Admitted Facts 10. At the outset of these proceedings, through his counsel, Mr Gledhill, Dr Hafez made admissions to some paragraphs and sub-paragraphs of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the Rules. In accordance with Rule 17(2)(e), the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved. The Facts to be Determined 11. In light of Dr Hafez s response to the Allegation made against him, the Tribunal is required to determine whether Dr Hafez failed to use the drill adequately when perforating Patient A s skull during the burr hole evacuation of a subdural haematoma. 6

7 12. It is also required to determine whether Dr Hafez s actions in failing to disclose relevant information to HEYHT in an application form, during an interview and on taking up the position were dishonest. 13. Finally it is required to determine if Dr Hafez s actions in amending Patient B s consent form without consulting Patient B, or informing his supervising Consultant, were dishonest. Factual Witness Evidence 14. The Tribunal received evidence on behalf of the GMC from the following witnesses: Mr D, Senior Charge Nurse, ICHT, in person Mr E, Consultant Neurosurgeon, ICHT, in person Dr F, ST4 in Anaesthetics (at the time of events), ICHT, by telephone Ms G, Human Resources Consultant, ICHT, by telephone Dr H, Locum Consultant Neurosurgeon, ICHT, in person Ms I, Senior HR Advisor, HEYHT, by telephone Mr C, Consultant Neurosurgeon, HEYHT, by telephone Mr J, Consultant Neurosurgeon and Clinical Area Lead for Neurosurgery, HEYHT, by telephone. 15. Dr Hafez gave oral evidence at the hearing. Expert Witness Evidence 16. The Tribunal received evidence from three expert witnesses as follows: Professor K, Professor of Neurosurgery, on behalf of the GMC Miss L, Consultant Spinal Neurosurgeon, on behalf of the GMC Professor M, Consultant Neurosurgeon, on behalf of Dr Hafez. 17. Professor K provided expert reports in respect of Patient A, dated 30 June 2016 and 25 May 2018, and gave oral evidence at the hearing by telephone. Professor K s evidence related to the care provided to Patient A by Dr Hafez and whether it met the standards expected of a reasonably competent Specialist Registrar in Neurosurgery. 18. Miss L provided an expert report in respect of Patient B, dated 3 November 2017, and gave oral evidence at the hearing by telephone. Miss L s evidence related to the treatment provided to Patient B by Dr Hafez and whether it met the standards of a reasonably competent Consultant Neurosurgeon. 7

8 19. Professor M provided an expert report, dated 6 November He was not required to give oral evidence. Professor M s evidence related to Dr Hafez s management of Patient A and whether it met the standards expected of a reasonably competent Specialist Registrar in Neurosurgery. Documentary Evidence 20. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to, the following: Internal ICHT s relating to the incident with Patient A Notes of investigatory meetings conducted at ICHT following the incident with Patient A Letters to Dr Hafez, dated 8 September 2015, 18 September 2015 and 21 October 2015, from Dr N, Deputy Medical Director and Responsible Officer at the Trust relating to Dr Hafez s exclusion from ICHT s from Dr Hafez to the Trust, dated 9 September 2015 and 22 October 2015 acknowledging receipt of the exclusion letters and confirming that he understood the content A copy of Dr Hafez s application for role of Clinical Fellow at HEYHT, submitted 22 October 2015 A letter to Dr Hafez, dated 10 November 2015, confirming the offer of the post of Clinical Fellow at the Hull and East Yorkshire Hospitals Internal HEYHT s relating to the incident with Patient B and Dr Hafez s alleged failure to disclose his exclusion from ICHT Record of investigatory meeting conducted at HEYHT, dated 21 January 2016 HEYHT Management report, dated 15 February 2016, relating to Dr Hafez s alleged failure to disclose his exclusion from ICHT. The Tribunal s Approach 21. In reaching its decision on facts, the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation. Dr Hafez does not need to prove anything. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities, i.e. whether it is more likely than not that the events occurred. 22. In relation to dishonesty, the Tribunal accepted the advice of the Legally Qualified Chair and first considered all the circumstances in which the behaviour occurred, including what Dr Hafez knew or believed to be the factual situation. It then went on to consider, in the light of Dr Hafez s understanding of the situation, whether his behaviour was dishonest by the standards of ordinary decent people. 8

9 23. The Tribunal has had regard to the good character evidence presented on Dr Hafez s behalf and has borne in mind that it is a relevant factor in its assessment of both Dr Hafez s credibility and the likelihood of him behaving as alleged. The Tribunal s Analysis of the Evidence and Findings 24. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. Paragraph 2(a) 25. Dr Hafez has admitted that he failed to adequately perform a burr hole evacuation of a subdural haematoma on Patient A in that he inserted a drain into Patient A s cerebral parenchyma. The Tribunal was required to determine whether Dr Hafez used the drill adequately when perforating Patient A s skull. 26. The Tribunal had regard to the evidence of Mr D who was in charge of the emergency theatre on 30 August 2015 and was part of the team assisting the surgery. During the procedure Mr D s role was administrative, dealing with the phones, computers and the bleep. 27. In an dated 24 September 2015, Mr D provided a statement to Mr O, Chief of Service, Neuroscience and Stroke, who was conducting the investigation into the incident. Mr D recalled that, after the procedure had started, the scrub nurse asked for another drill as Dr Hafez had stated that the first drill was not working. Mr D stated that he checked the first drill and the perforator was rotating. However, to avoid an argument he opened a second drill and stayed with Dr Hafez while he was using it. Mr D stated that Dr Hafez was using a different technique to the one that he had seen many surgeons with whom he had worked before use. Mr D stated that when he was told that the second drill was not working, despite the fact that he could again see the perforator rotating, he felt that he needed to give Dr Hafez some tips that might help, based on his experience of assisting with the procedure with different surgeons. Mr D stated that he asked the scrub nurse to hold Patient A s head and asked Dr Hafez to position his drill on the patient s head before pressing the pedal. He stated that Dr Hafez acknowledged his suggestion and they continued with the surgery. 28. In his GMC witness statement, dated 27 July 2016, Mr D stated that prior to his intervention, Dr Hafez was using the drill before positioning it on Patient A s head. He stated that the drill was going everywhere and that Dr Hafez did not have a good grip on it. Mr D acknowledged that Dr Hafez s technique was one that he had seen other surgeons use, however, he stated that those surgeons had been bigger in stature and as such have been able to control the drill. 9

10 29. Dr Hafez denies that he did not use the drill adequately and maintained that the drill worked intermittently. 30. The Tribunal had regard to the ICHT notes of the investigatory meeting with Dr Hafez, dated 17 September 2015, in which he sets out his account of the operation and states that the drill had not worked properly during the operation. Dr Hafez stated that although the drill worked initially it stopped while he was perforating Patient A s skull and would not go further, leading him to ask the scrub nurse for another drill. Dr Hafez stated that the second drill also worked at the beginning, but was not able to go through the bone. He confirmed that he needed the second drill to complete the first burr hole and start the second. 31. In his oral evidence, Dr Hafez stated that the drill worked well at the beginning but then stopped or jumped. He stated that when he pressed the pedal the drill seemed to work properly but when it came to applying the drill to Patient A s skull it did not. Dr Hafez stated that he had to ask for assistance from the scrub nurse who then asked for a second drill. In response to questions about Mr D s evidence, Dr Hafez stated that Mr D was not close to the operation area as he was undertaking other duties. He stated that when the problem arose Mr D came over to offer assistance and advice. Dr Hafez stated that he had already been using the technique that Mr D subsequently suggested but Mr D would not have seen this as he was not close to the operation area. 32. The Tribunal considered the joint statement of Professor K and Professor M, dated 12 July The experts state that there is a difference in recollection between Mr D and Dr Hafez. The experts agree that if Mr D s account is accepted by the Tribunal, then the use of the drill was inadequate. Conversely, if Dr Hafez s account is preferred the use of the drill was adequate. The allegation therefore falls to be determined on a factual basis. 33. The Tribunal noted that Mr D did not become involved in the operation until he was informed that the drill was not working properly and as a result he would not have witnessed Dr Hafez s attempts to use the drill. Although Mr D disputes Dr Hafez s assertion that the drill was not working, there was no dispute that the scrub nurse maintained that neither drill was working adequately during the procedure. The Tribunal noted that, despite Mr D s concerns about Dr Hafez s technique, Dr Hafez had previously undertaken this procedure at ICHT apparently without incident. It further noted that he was able to complete the procedure once the drill was replaced. The Tribunal also had regard to the evidence from the consultants, Mr E and Miss L, that the drill could be tricky to use and could cut out during use. 34. Dr Hafez was comparatively new to ICHT and had not worked with this operation team previously. Dr Hafez s account of events had been largely consistent over time, whilst Mr D was somewhat vague giving evidence such as being unclear as to how many burr holes were made. Mr D was candid in explaining that he had 10

11 not observed the procedure carefully and had not been aware of when the drill pedal was being applied. Having considered all the evidence, the Tribunal was not satisfied that the GMC had discharged the burden of proving the allegation and accordingly found this paragraph not proved. Paragraph 4 submission of the application to HEYHT 35. Dr Hafez has admitted that on 22 October 2015 he submitted an application for the position of Clinical Fellow in Neurosurgery to HEYHT and failed to disclose that at the time of submitting the application he was employed at ICHT. Dr Hafez has also admitted that he failed to provide details of a referee from ICHT. The Tribunal is required to determine if, at the time Dr Hafez submitted the application, he knew that he had not disclosed the information and knew that he was required to. The Tribunal is also required to determine if Dr Hafez s actions were dishonest. 36. The GMC s case was that Dr Hafez had deliberately and dishonestly omitted the information as he wished to conceal his current employment from HEYHT, given the fact that he had been suspended and excluded by ICHT as a result of clinical concerns. 37. In his Rule 7 response to the GMC, Dr Hafez stated that the application form did not include details of his employment at ICHT as it was an application form that had previously been saved on the NHS jobs website. Dr Hafez stated that he had not noticed that it was not up to date when he submitted it and that this was a mistake on his part, the result of a lack of attention. However, he recalled that he had made the interviewing panel aware of his mistake and they understood the position. 38. The Tribunal had regard to the application form submitted by Dr Hafez and noted the unequivocal requirement to provide details of Current/most recent employer (reference always required). The Tribunal noted that this was standard information that any job applicant would know that they needed to provide in an application form, and it was not credible that Dr Hafez would not have noticed that this information was not up to date. Dr Hafez s initial assertion was that he had cut and pasted the information from his CV; this would have required him to actively consider the information he was providing and where it was to be placed. This contrasted with his later account, when Dr Hafez explained that he had simply used an unamended previous application form which he had stored on the NHS jobs website. 39. The Tribunal noted that the remainder of the application form appeared to contain accurate information. Dr Hafez had been suspended from work for almost two months at the point of submitting the application. The Tribunal found Dr Hafez s assertion that he only realised the omission shortly after the form was sent, and did not take steps to correct it, to simply not be credible. Having considered all the evidence, the Tribunal was satisfied that Dr Hafez knew at the time that he 11

12 submitted the application that he had not disclosed or provided information that was required. Accordingly it found this paragraph of the allegation proved. 40. The Tribunal considered whether Dr Hafez s failure to include details of his current employer and provide a referee were dishonest. 41. The Tribunal noted that ICHT had written to Dr Hafez on 8 September 2015, 18 September 2015 and 21 October 2015, confirming the terms of his exclusion. Each letter included the following direction: You must inform me of any organisation, including locum organisations, with whom you normally work or propose to undertake voluntary or paid work. You should also inform those organisations of the exclusion or restrictions you are subject to. 42. The Tribunal noted that Dr Hafez acknowledged receipt of the letters dated 8 September 2015 and 21 October 2015 and it considered that he could have been in no doubt about the need to be open about his employment at ICHT. 43. Dr Hafez had a clear motivation to withhold his employment at ICHT from potential future employers. Dr Hafez made no effort to contact HEYHT regarding the omission in the application and failed to comply with his obligation to inform ICHT of his job application. The Tribunal was satisfied that Dr Hafez was aware of the implications of his actions and that they were intentional. The Tribunal therefore found that this behaviour was dishonest by the standards of ordinary decent people. Paragraph 6(b)(i) & (ii) 44. Dr Hafez has admitted that on 6 November 2015, he attended an interview at HEYHT, during which he knowingly failed to disclose that he was subject to investigation by ICHT and that he had been formally excluded by ICHT. Dr Hafez has also admitted that he had given the impression that he was currently working and undertaking the required duties of his role at ICHT. 45. The Tribunal is required to determine whether, during the interview, Dr Hafez knew that he had given the impression that he was currently working and undertaking the required duties of his role at ICHT when he should not have. It is also required to determine whether he knew at the time that he was required to disclose details of the ICHT investigation and his exclusion. 46. The Tribunal had regard to the evidence of Dr H who was a member of the interview panel at HEYHT. In his GMC witness statement, dated 21 November 2016, Dr H stated that at the start of the interview they discussed Dr Hafez s education, training and his work experience, particularly in the UK. Dr H stated that it had been noticed that Dr Hafez had listed his current place of work as the Walton Centre. 12

13 However, the form also stated that his employment there had ended in August Dr H stated that they had asked Dr Hafez about his work since leaving the Walton Centre and he informed them that he was currently working at ICHT. Dr R, another member of the interviewing panel who had previously worked at ICHT, asked Dr Hafez if he was carrying out on-call duties, working in the operating theatres and carrying out routine management of patients to which Dr Hafez nodded in agreement. Dr H stated that at no point during the interview did Dr Hafez state that he was subject to an investigation or that he was currently suspended from ICHT and had been for two months. 47. The Tribunal had regard to Dr Hafez s oral evidence in which he stated that he understood that during the interview he was supposed to answer the questions asked by the panel, but was not supposed to make further comments. Dr Hafez stated that he believed HEYHT would contact his current employer, but he did not know that he had an obligation to tell them he was excluded. The Tribunal did not find Dr Hafez s evidence to be credible. It noted that Dr Hafez had received at least three letters from ICHT prior to the interview stating that he should inform any organisation he proposed to undertake work for of his exclusion. When this point was raised with Dr Hafez during cross-examination, he stated that he did not think that he had read the letter(s) all the way to the end, despite the fact that he had acknowledged that he had received and understood the letters dated 8 September 2015 and 21 October Furthermore, by the time of the interview, Dr Hafez had provided a written explanation to ICHT in relation to contact they had received from a locum agency. Dr Hafez had also had a meeting with ICHT where it was explicitly explained to him that he was obliged to inform any potential employers of his current position. This was reinforced in a further letter from ICHT to Dr Hafez, which he received days before the interview. Having considered all the evidence, the Tribunal was satisfied that Dr Hafez knew that he should have informed the interview panel of the ICHT investigation and exclusion, and that he should not have given the impression that he was currently working and undertaking the required duties of his role at ICHT. Accordingly, it found these sub-paragraphs of the allegation proved. 49. The Tribunal considered if Dr Hafez s conduct during the interview was dishonest. 50. The Tribunal noted that Dr Hafez had received three letters from ICHT which clearly told him that he should disclose to any organisation, including locum organisations, with whom you propose to undertake voluntary or paid work of the exclusion or restrictions that he was subject to. Although there was no evidence to demonstrate that Dr Hafez was asked directly about any issues such as serious incidents or investigations, the Tribunal noted Dr H s evidence that this would only be discussed if it was referred to in the application form. The Tribunal found it implausible that Dr Hafez did not believe that the ICHT investigation and exclusion 13

14 was of relevance, as it had a direct bearing on his suitability for the HEYHT position, which he latterly conceded in evidence. Dr Hafez s suggestion that it was only shortly after leaving the interview that he realised that he had given the impression, was simply not credible. 51. The Tribunal considered that Dr Hafez did not disclose the information so as to add to the impression that he was currently undertaking his full duties at ICHT. He did this with the intention of improving the prospects of his obtaining the position. It was satisfied that his actions were dishonest by the standards of ordinary decent people. Paragraph 8(b) 52. Dr Hafez has admitted that between 12 November 2015 and 12 January 2016 he knew that he had failed to inform HEYHT that he was, or had been, subject to investigation by ICHT and that he had been formally excluded. The Tribunal is required to determine if Dr Hafez knew that he was required to provide this information. 53. In his oral evidence, Dr Hafez stated that he was uncertain as to whether HEYHT knew about his experiences at ICHT. However, he stated that his offer of the post was subject to satisfactory references and he was certain that an organisation would go through the pre-employment check and assess every reference, especially from the current employer. On this basis, he assumed that HEYHT would be made aware. 54. The Tribunal considered Dr Hafez s evidence to be disingenuous, given that he knew that he had not provided details of a referee on his application form and there is no evidence that he provided one subsequently. The Tribunal considered that Dr Hafez had an obligation to be open and transparent with HEYHT and that he should have informed HEYHT of his investigation and exclusion on receipt of the job offer. However, he did not. According to the chronology, Dr Hafez resigned his position at ICHT following his job offer at HEYHT. Dr Hafez must have realised that he had not been asked any questions regarding the investigation before taking up the position. Having considered all the evidence, the Tribunal was satisfied that Dr Hafez knew that he should have provided the information to HEYHT. Accordingly, it found these sub-paragraphs of the allegation proved. 55. The Tribunal considered if Dr Hafez s conduct during the interview was dishonest. 56. The Tribunal considered the context in which Dr Hafez took up his position at HEYHT. It had regard to Dr Hafez s to Ms G at ICHT, dated 7 December 2015, in which he states that he has decided to resign, with immediate effect, as he had lost hope that he would be able to return to work at ICHT and he was about to go 14

15 home for the Christmas holiday. Dr Hafez makes no mention of the fact that he had obtained a post at HEYHT and would be starting on 16 December The Tribunal considered that this was a deliberate attempt to avoid ICHT contacting his new employer to inform them of the concerns. It is notable that HEYHT did not become aware of the clinical concerns at ICHT in relation to Dr Hafez until 12 January 2016, when he notified HEYHT of the conditions imposed on his registration by an Interim Orders Tribunal on 11 January Having considered all the evidence, the Tribunal was satisfied that Dr Hafez knowingly and deliberately withheld relevant information and that his actions were dishonest by the standards of ordinary decent people. Paragraph The Tribunal has already stated its findings that Dr Hafez s actions as set out in paragraphs 4, 6 and 8 were dishonest. In respect of paragraphs 3, 5 and 7, the Tribunal accepted the position agreed between the parties that it did not need to consider dishonesty in relation to those factual matters if it were satisfied that paragraphs 4, 6 and 8 were proved. Paragraph 11(b) 58. Dr Hafez has admitted that on 23 December 2015 he assisted Mr C with a microdiscectomy, during or before which he realised that he had obtained consent for the wrong side. He has admitted that he failed to appropriately communicate with Mr C forthwith that he had failed to take appropriate consent. The Tribunal is required to determine whether Dr Hafez knew that he was required to inform Mr C forthwith that he had failed to take the appropriate consent. 59. The Tribunal heard that Patient B was in surgery for a discectomy, a procedure to remove a disc from the lumbar spine and Mr C was supervising. In his GMC witness statement, dated 13 April 2017, Mr C stated that when he checked the side marked for surgery, he saw that the wrong side had been marked by Dr Hafez. Mr C stated that when he pointed this out, Dr Hafez said don t worry and explained that he had been marking the level (which level disc to operate on). Mr C stated that he noticed afterwards that the patient consent form for Patient B had been changed and the incorrect side (right) had been crossed out and left had been written on instead. Mr C was of the opinion that Dr Hafez had marked the wrong side on the patient in conjunction with his initial error on the consent form. 60. In his oral evidence, Dr Hafez stated that he was fully aware that the procedure was on the left side and that it was on this basis that he completed the consent form that Patient B signed. Dr Hafez stated that he made a handwriting mistake when he wrote right instead of left and that when he realised later he amended it. He stated that he did not know that he needed to discuss it with Patient B as the patient was fully aware it was the left side. The Tribunal noted that the 15

16 word right was written twice on the consent form but only amended on one occasion. Dr Hafez also stated that he did not discuss it with Mr C, as he did not know that he had to inform him of a correction to handwriting. 61. Furthermore, the Tribunal noted clear inconsistencies in the explanations provided by Dr Hafez to Mr C. In particular, with reference to Patient B, Dr Hafez first stated that he was simply marking the level and not the side of surgery. The Tribunal accepted Mr C s evidence that Dr Hafez later said that he marked the right side because he could not access the patient s left side as the patient was unable to mobilise appropriately. Mr C challenged this as the patient was freely mobile and could have easily stood up to be marked. Finally, Dr Hafez informed the Tribunal in his oral evidence that he was merely marking the area. It is not possible to reconcile these changing explanations. 62. The Tribunal did not find Dr Hafez s evidence in relation to these events credible. It considered that Dr Hafez s experience at ICHT, when he was criticised for not keeping his supervising consultant informed of difficulties he had experienced in his care of Patient A, should have made him acutely aware of the need to inform his consultant when he has made a mistake. The Tribunal was satisfied that Dr Hafez s reference to a handwriting error was an attempt to minimise his failure to take appropriate consent. 63. Having considered all the evidence, the Tribunal was satisfied that Dr Hafez knew that he should have informed Mr C forthwith that he had failed to take the appropriate consent. Accordingly, it found this sub-paragraph of the allegation proved. 64. The Tribunal considered if Dr Hafez s actions in failing to inform Mr C that he had failed to take appropriate consent, when he knew that he ought to, were dishonest. Having considered all the evidence, the Tribunal was satisfied that Dr Hafez s failure to volunteer the information to Mr C arose out of his desire to hide the fact that he had made a mistake and that his actions were dishonest by the standards of ordinary decent people. Paragraph 12(b)(i) & (ii) 65. Dr Hafez has admitted that, on 23 December 2015, having realised that he had obtained consent for the wrong side, he altered the consent form without consulting Patient B or informing Mr C. The Tribunal is required to determine whether Dr Hafez knew that he should not have altered the consent form in those circumstances. 66. Although Dr Hafez now admits that he altered the consent form after Patient B had signed it, the Tribunal accepted Mr C s evidence that Dr Hafez had originally reassured him that he had altered the consent form before Patient B signed it. The 16

17 Tribunal was therefore satisfied that this indicated Dr Hafez was aware that he should not have altered a consent form after it had been signed by the patient. 67. The Tribunal has already determined that Dr Hafez knew that he should have informed Mr C that he had failed to take appropriate consent. By extension, and as the Tribunal did not accept Dr Hafez s evidence on the issue, it was also satisfied that Dr Hafez knew that he should have informed Mr C that he had altered the consent form. Accordingly, the Tribunal found these sub-paragraphs of the allegation proved. 68. The Tribunal considered if Dr Hafez s actions were dishonest. 69. The Tribunal had regard to Mr C s evidence during cross-examination. When asked how Dr Hafez would know that he should inform him that he had altered the form, Mr C responded basic common sense, probity. He further explained that Dr Hafez was well versed in the consent process and would surely have understood that it was wholly unprofessional to get someone to sign an important document and then to alter a fundamental aspect later. 70. Having considered the evidence, the Tribunal was satisfied that Dr Hafez s actions in altering the consent form, without consulting Patient B or informing Mr C, were an attempt to cover up his initial mistake and that his actions were dishonest by the standards of ordinary decent people. Paragraph 13(c) 71. Dr Hafez has admitted that, on 23 December 2015, he failed to maintain adequate records for Patient B in that he failed to record on the consent form the fact that it had been amended and the reason for the amendment. Dr Hafez also admitted that he failed to record in Patient B s medical records that the consent form had been amended and the reason for the amendment. The Tribunal is required to determine if Dr Hafez knew that he was required to record this information. 72. There is limited evidence before the Tribunal to suggest that Dr Hafez knew that he had to record the alterations to the consent form on the consent form itself or in the medical record. The Tribunal noted that the consent form was a standalone document and that it was obvious that the reason for the alteration was right being crossed out and left added. No attempt was made to disguise the correction. It is notable that Dr Hafez did not have an induction in HEYHT policies or procedures. Having considered the evidence the Tribunal was not satisfied that Dr Hafez knew that he had to record the fact that he had amended the consent form on the consent form and in Patient B s records. Accordingly it found this sub-paragraph of the allegation not proved. 73. The Tribunal considered if Dr Hafez s conduct was dishonest. 17

18 74. The Tribunal has already stated that it was not satisfied that Dr Hafez knew that he was required to record the amendments to the consent form in Patient B s medical records. In the circumstances, having established the facts as Dr Hafez understood them, the Tribunal was not satisfied that his actions would be considered dishonest by the standards of ordinary decent people. Paragraph The Tribunal has already stated its findings that Dr Hafez s actions as set out in paragraphs 11 and 12 were dishonest. It did not find dishonesty in respect of paragraph 13 as set out above. The Tribunal s Overall Determination on the Facts 76. The Tribunal has determined the facts as follows: Imperial College Healthcare NHS Trust 1. Between 10 August 2015 and 7 December 2015 you were employed by Imperial College Healthcare NHS Trust ( Imperial ) as a Specialist Registrar in Neurosurgery. Admitted and found proved 2. On 30 August 2015 you failed to adequately perform a burr hole evacuation of a subdural haematoma on Patient A, in that you: a. did not use the drill adequately when perforating Patient A s skull; Not proved b. inserted a drain into Patient A s cerebral parenchyma. Admitted and found proved Hull and East Yorkshire NHS Trust 3. On 22 October 2015 you submitted an application ( the Application ) for the position of Clinical Fellow in Neurosurgery to Hull and East Yorkshire NHS Trust ( Hull and East Yorkshire ) and within the Application you failed to: a. disclose that at the time of submitting the Application you were employed at Imperial; Admitted and found proved b. provide details of a referee from Imperial. Admitted and found proved 18

19 4. In respect of paragraph 3, you knew at the time you submitted the Application that you: a. had not disclosed or provided the information listed in paragraphs 3(a) and (b); Determined and found proved b. were required to disclose or provide the information listed in paragraphs 3(a) and (b). Determined and found proved 5. On 6 November 2015 you attended an interview ( the Interview ) at Hull and East Yorkshire, during which you: a. failed to disclose that you: i. were subject to investigation by Imperial; Admitted and found proved ii. had been formally excluded by Imperial; Admitted and found proved b. gave the impression that you were currently working and undertaking the required duties of your role at Imperial. Admitted and found proved 6. In respect of paragraph 5, you knew that during the Interview you: a. had: i. not disclosed the information listed at paragraphs 5(a)(i) to (ii); Admitted and found proved ii. given the impression described at paragraph 5(b); Determined and found proved b. were required to: i. disclose the information listed at paragraphs 5(a)(i) to (ii); Determined and found proved ii. not give the impression described at paragraph 5(b). Determined and found proved 7. Between 12 November 2015 and 12 January 2016 you failed to inform Hull and East Yorkshire that you: 19

20 a. were or had been subject to investigation by Imperial; Admitted and found proved as amended under Rule 17(6) b. had been formally excluded by Imperial. Admitted and found proved 8. In respect of paragraph 7, you knew that you: a. had not provided the information listed at paragraphs 7(a) and (b); Admitted and found proved b. were required to provide the information listed at paragraphs 7(a) and (b). Determined and found proved 9. Your actions as described at paragraphs 3 to 8 were dishonest. Determined and found proved in relation to paragraphs 4, 6 & On or around 22 December 2015 you failed to obtain appropriate consent from Patient B in relation to a microdiscectomy on Patient B s left side in that the consent form referred only to a microdiscectomy on Patient B s right side. Admitted and found proved 11. On 23 December 2015 you assisted Dr C with the microdiscectomy during or before which you realised that you had obtained consent for the wrong side only and you: a. failed to appropriately communicate with Dr C forthwith that you had failed to take appropriate consent; Admitted and found proved b. knew that you were required to inform Dr C forthwith that you had failed to take appropriate consent. Determined and found proved 12. On 23 December 2015 having realised that you obtained consent for the wrong side you: a. altered the consent form without: i. consulting Patient B; Admitted and found proved ii. informing Dr C; Admitted and found proved b. knew you should not alter the consent form without: i. consulting Patient B; Determined and found proved 20

21 ii. informing Dr C. Determined and found proved 13. On 23 December 2015 you failed to maintain adequate records for Patient B in that having amended the consent form you: a. failed to record on the consent form: i. that it had been amended; Admitted and found proved ii. the reason for the amendment; Admitted and found proved b. failed to record in Patient B s medical records: i. that the consent form had been amended; Admitted and found proved ii. the reason for the amendment; Admitted and found proved c. knew that you were required to record the information stated at paragraphs 13(a) and (b). Not proved 14. You actions as described at paragraphs 11 to 13 were dishonest. Determined and found proved in relation to paragraphs 11 and 12. Not proved in relation to paragraph 13. Determination on Impairment - 19/09/ The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts which it has found proved as set out before, Dr Hafez s fitness to practise is impaired by reason of misconduct. The Evidence 2. The Tribunal has taken into account all the evidence received during the facts stage of the hearing, both oral and documentary. In addition, the Tribunal received further evidence as follows: testimonials from Dr Hafez s professional colleagues personal testimonials a patient testimonial 21

22 evidence of Continuing Professional Development (CPD) which includes certificates confirming attendance on a Probity in professional practice course (25 & 26 July 2018) Dr Hafez s reflective statement, dated 17 September Submissions 3. On behalf of the GMC, Mr Mills submitted that the facts in this case amount to serious misconduct and that Dr Hafez s fitness to practise is impaired as a result. 4. In relation to Dr Hafez s treatment of Patient A, Mr Mills referred the Tribunal to the conclusion of the experts, Professor K and Professor M, that Dr Hafez s standard of care was seriously below the standard to be expected. Mr Mills accepted that Dr Hafez s failing is remediable. However, he submitted that there is insufficient evidence before the Tribunal to demonstrate that it has been remediated and is unlikely to be repeated. Mr Mills submitted that Dr Hafez s lack of openness in failing to inform Mr E of the clinical situation with Patient A as soon as he became aware of it, goes to the risk of repetition. 5. In relation to Dr Hafez s dishonesty during the process of applying for a position at HEYHT and in relation to Patient B s consent form, Mr Mills submitted that it is of relevance that the dishonesty found is connected to the practice of medicine. Mr Mills referred the Tribunal to paragraph 36 of the judgment in the case of GMC v Theodoropolous [2017] EWHC 1984 (Admin), in which Mr Justice Lewis stated: 36 Dishonesty will be particularly serious where it occurs in the performance of a doctor s duties or involves a breach of the trust placed in a doctor by the community: see Khan v General Medical Council [2015] EWHC 301 (Admin). Honesty and integrity are also fundamental in relation to qualifications and the system of applying for medical positions. Thus, in Makki v General Medical Council [2009] EWHC 3180 (Admin), the court dealt with a registered medical practitioner who had misrepresented the extent of his experience when applying for a post in a hospital. Irwin J., as he then was, said at paragraph 44 of his judgment: The degree of dishonesty here and its nature, affecting not registration but qualification and the integrity of the system of job applications, affects something which is every bit as fundamental to the proper respect for the system, to the proper operation of the system of medicine and of appointments to medical positions, as is the system of registration. 6. In relation to Dr Hafez s dishonesty, in the context of a job application, Mr Mills stated that Dr Hafez s actions interfered with the process of recruitment. Dr Hafez would not have been offered the job at HEYHT on the day of the interview if 22

23 the interviewing panel had been aware of the circumstances surrounding his exclusion from ICHT. Mr Mills submitted that Dr Hafez has shown no evidence of insight. 7. In relation to Dr Hafez s dishonesty in respect of Patient B s consent form, Mr Mills submitted that the misconduct lay not only in Dr Hafez s failure to take appropriate consent but rather in relation to Dr Hafez s failure to inform his senior colleague and to consult further with Patient B. 8. Mr Mills did not advance a case of serious misconduct in respect of Dr Hafez s record-keeping in relation to the consent form, in the light of the Tribunal s finding that Dr Hafez s actions in this regard were not dishonest. 9. Mr Mills referred the Tribunal to paragraph 76 of the judgment in the case of CHRE v NMC & Paula Grant [2011] EWHC 927 (Admin), in which Mrs Justice Cox adopted a helpful approach to determining impairment in the following way: Do our findings of fact in respect of the doctor s misconduct show that his/her fitness to practise is impaired in the sense that s/he a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. 10. Mr Mills submitted that all four strands are engaged in this case. 11. On behalf of Dr Hafez, Mr Gledhill conceded that Dr Hafez s actions amounted to misconduct and that his fitness to practise is impaired as a result. 12. In relation to the clinical concerns identified in Patient A s case, Mr Gledhill stated that Dr Hafez accepted the conclusions of the experts. He submitted that, whilst the restrictions on Dr Hafez s practice have made it difficult for him to fully remediate, it is something that he hopes to address in the future. 13. In relation to Dr Hafez s failure to take appropriate consent from Patient B, Mr Gledhill referred the Tribunal to Miss L s opinion that this was below, but not seriously below, the standard to be expected. 14. In relation to the probity concerns, Mr Gledhill referred the Tribunal to the probity courses that Dr Hafez has undertaken. 23